William J. Thornton v. Mercer County Board of Education

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

WILLIAM J. THORNTON, FILED
Petitioner Below, Petitioner March 6, 2023
EDYTHE NASH GAISER, CLERK
vs.) No. 22-ICA-96 (Cir. Ct. of Kanawha Cnty. No. 22-A-22) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

MERCER COUNTY BOARD OF EDUCATION,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner William J. Thornton appeals the July 6, 2022, order from the Circuit Court
of Kanawha County that dismissed his administrative appeal of a decision of the West
Virginia Public Employees Grievance Board (“Grievance Board”) as untimely filed.
Respondent Mercer County Board of Education (“Mercer BOE”) timely filed its response
and Mr. Thornton timely filed his reply. 1

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the circuit court’s decision to dismiss
the appeal but no substantial question of law. As explained below, we find that the circuit
court erred by dismissing Mr. Thornton’s appeal as untimely pursuant to West Virginia
Code § 6C-2-5(c) (2007). 2 Accordingly, a memorandum decision reversing and remanding
the circuit court’s decision is appropriate under the “limited circumstances” requirement
of Rule 21(d) of the Rules of Appellate Procedure.

The sole issue on appeal is whether Mr. Thornton’s appeal of the Grievance Board’s
decision was timely filed pursuant to West Virginia Code § 6C-2-5(c). Therefore, our
recitation of the facts and procedural history of this case are brief. Mr. Thornton was
previously employed by Mercer BOE as a custodian. The record reflects that during his
employment, Mr. Thornton was the subject of several disciplinary actions stemming from
his workplace conduct. At issue here, is a written reprimand for insubordination issued on
March 18, 2021. Mr. Thornton’s level one grievance appeal was denied. Thereafter, Mr.
Thornton sought a level three hearing before the Grievance Board. Following a hearing on
January 27, 2022, the Grievance Board issued its order on April 20, 2022, denying Mr.

1
Mr. Thornton is self-represented. Mercer BOE is represented by Kermit J. Moore,
Esq. and Patrick D. McCune, Esq.
2
West Virginia Code § 6C-2-5(c) requires that any appeal from the Grievance Board
must be filed within thirty days of receipt of the Grievance Board’s decision.
1
Thornton’s grievance, finding, inter alia, that his conduct warranted his suspension and
subsequent termination of employment.

On May 24, 2022, Mr. Thornton filed his appeal in the Circuit Court of Kanawha
County pursuant to the governing provisions of West Virginia Code § 6C-2-5 (2007). On
July 6, 2022, the circuit court entered its order dismissing Mr. Thornton’s appeal on the
basis that it was not timely filed within thirty days as required by West Virginia Code §
6C-2-5(c). This appeal followed.

In this appeal, we are guided by the following standard of review:

The instant case presents a question of law regarding whether the statutory
requirements for perfecting an appeal of an administrative agency decision
to a circuit court were satisfied. As we have frequently noted, “[w]here the
issue on an appeal from the circuit court is clearly a question of law or
involving an interpretation of a statute, we apply a de
novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.
Va. 138, 459 S.E.2d 415 (1995).

Solution One Mrtg., LLC v. Helton, 216 W. Va. 740, 742, 613 S.E.2d 601, 603 (2005).

From the outset, we note that Mr. Thornton’s appeal sets forth several additional
assignments of error related to Grievance Board’s ruling. However, as previously
indicated, our appellate review is limited solely to the timeliness of his appeal, which was
the sole basis for the circuit court’s dismissal.

West Virginia Code § 6C-2-5 governs appeals from decisions of the Grievance
Board and it provides:

(a) The decision of the administrative law judge is final upon the parties and
is enforceable in the circuit court of Kanawha County.
(b) A party may appeal the decision of the administrative law judge on the
grounds that the decision:
(1) Is contrary to law or a lawfully adopted rule or written policy of the
employer;
(2) Exceeds the administrative law judge's statutory authority;
(3) Is the result of fraud or deceit;
(4) Is clearly wrong in view of the reliable, probative and substantial
evidence on the whole record; or
(5) Is arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
(c) A party shall file the appeal in the circuit court of Kanawha County within
thirty days of receipt of the administrative law judge's decision. The decision

2
of the administrative law judge is not automatically stayed upon the filing of
an appeal, but a stay may be granted by the circuit court upon a separate
motion for a stay.
(d) The court shall review the entire record that was before the administrative
law judge, and the court may hear oral arguments and require written briefs.
The court may reverse, vacate or modify the decision of the administrative
law judge, or may remand the grievance to the administrative law judge or
the chief administrator for further proceedings.

In its order, the circuit court relied upon the thirty-day language under subsection
(c) to dismiss Mr. Thornton’s appeal. However, we find that the circuit court failed to
consider the definition of “days” that is specific to the grievance process as provided by
West Virginia Code § 6C-2-2(c) (2008):

“Days” means working days exclusive of Saturday, Sunday, official holidays
and any day in which the employee’s workplace is legally closed under the
authority of the chief administrator due to weather or other cause provided
for by statute, rule, policy or practice.

Furthermore, the Supreme Court of Appeals has squarely addressed this issue. In
Syllabus Point 1 of West Virginia Department of Health and Human Resources v. Hess,
189 W. Va. 357, 432 S.E.2d 27 (1993), the Court held that,

W. Va. Code § 29-6A-7, 3 which allows an appeal to the circuit court within
thirty days of receipt of the hearing examiner’s decision, must be read in pari
materia with W. Va. Code § 29-6A-2(c), which defines “days” as “working
days exclusive of Saturday, Sunday or official holidays.”

The Hess holding was recently reiterated by the Supreme Court in Deyerle v. West
Virginia Department of Health and Human Resources, No. 17-0633, 2019 WL 856254 at
* 2 (W. Va. Feb. 22, 2019) (memorandum decision).

In syllabus point one of West Virginia Department of Health and Human
Resources v. Hess, 189 W. Va. 357, 432 S.E.2d 27 (1993), we held that
“[West Virginia Code § 6C-2-5(c)], which allows an appeal to the circuit
court within thirty days of receipt of the [ALJ]'s decision, must be read in
pari materia with [West Virginia Code § 6C-2-5(c)], which defines ‘days’ as
‘working days exclusive of Saturday, Sunday or official holidays.’”

3
West Virginia Code § 29-6A-7 has been repealed and recodified under Article 2,
Chapter 6C of our code.
3
The record does not reflect when Mr. Thornton received a copy of the Grievance
Board’s decision. However, when considering the date of the Grievance Board’s decision
(April 20, 2022) and the date Mr. Thornton filed his appeal (May 24, 2022), only twenty-
four working days had elapsed, at best. As such, we find that Mr. Thornton’s appeal was
not time barred and the circuit court erred as a matter of law in dismissing the appeal as
untimely.

Accordingly, we reverse the July 6, 2022, order and remand this matter to the Circuit
Court of Kanawha County for a decision on the merits of Mr. Thornton’s appeal. 4

Reversed and Remanded.

ISSUED: March 6, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

4
Pursuant to West Virginia Code § 51-11-4(b)(4) (2022), circuit courts retain
jurisdiction over appeals from administrative agency orders entered on or before June 30,
2022.
4